State v. Miller

• Decision Date: 02 September 1999
• Docket Number: No. C4-98-635.,C4-98-635.
• Citation: State v. Miller, 600 N.W.2d 457 (Minn. 1999)
• Parties: STATE of Minnesota, Respondent, v. Robert Dale MILLER, petitioner, Appellant.
• Court: Minnesota Supreme Court

600 N.W.2d 457

STATE of Minnesota, Respondent, v.Robert Dale MILLER, petitioner, Appellant.

No. C4-98-635.

Supreme Court of Minnesota.

September 2, 1999.

William J. Mauzy, Douglas H.R. Olson, Matthew D. Forsgren, Mauzy Law Firm, Minneapolis, for appellant.

Michael A. Hatch, Atty. Gen., Paul R. Kempainen, Asst. Atty. Gen., St. Paul, James C. Backstrom, Dakota County Atty., Phillip D. Prokopowicz, Asst. Dakota County Atty., Hastings, for respondent.

Paul R. Scoggin, Asst. Hennepin County Atty., Minneapolis, amicus curiae.

Heard, considered, and decided by the court en banc.

OPINION

STRINGER, Justice.

In this criminal matter involving charges of aiding and abetting the filing of false landfill abatement fee reports, appellantRobert Dale Miller challenges the admissibility of a statement he made to law enforcement during the execution of a search warrant at appellant's place of employment on the grounds that the statement was taken in violation of Minnesota Rules of Professional Conduct 4.2(MRPC 4.2) prohibiting an attorney from communicating with an opposing party known to be represented by counsel without obtaining the consent of the party's attorney.Following an omnibus hearing the trial court issued an order partially excluding the statement.The state appealed arguing that MRPC 4.2 does not apply to non-custodial voluntary statements taken from an individual who had not been formally charged.The court of appeals reversed the exclusionary ruling, holding that the violation of MRPC 4.2 did not "compromise the fair administration of justice" and therefore did not warrant exclusion.State v. Miller,586 N.W.2d 133, 139(Minn.App.1998).We reverse and reinstate the partial suppression order of the trial court.

The Dakota County Office of Environmental Management(DCEM) received a complaint on June 22, 1994 that the Burnsville Sanitary Landfill (BSL) was giving certain waste haulers favorable waste disposal rates.An investigation was launched after DCEM personnel observed discrepancies between the amount of waste reported by BSL and the amount appearing to be coming and going from the landfill.Assistant Dakota County AttorneyJay Stassen was assigned to advise the county on the civil aspects of the investigation.In August of 1994, DCEM asked attorney Stassen whether there might be criminal implications to the investigation.Because attorney Stassen could not give advice on criminal law, Assistant County AttorneyPat Skelly, a prosecutor with the Dakota County Attorney's Office, was assigned to consult with the civil investigators on possible criminal charges.Skelly advised the DCEM in the fall of 1994 that there was insufficient information to begin a criminal investigation at that time.Although Stassen remained the county attorney in charge of the civil investigation, Skelly was consulted on criminal matters.

In August Stassen learned that the Internal Revenue Service (IRS) and the United States Attorney's Office were investigating the fee payment arrangements at BSL.The IRS was also investigating appellant's federal income tax liability and was aware that attorney William Mauzy claimed to represent appellant in the tax matter.The record is unclear as to how much information was given to Stassen or Skelly about the IRS investigation, but according to the county's records, both county attorneys met with representatives of the United States Attorney's Office on November 4, 1994 regarding the federal tax investigation of five waste haulers and "one principal of the Burnsville Landfill," presumably appellant.

In December of 1994 Stassen and other county representatives met with BSL staff and an associate from the office of attorney Joe Dixon, the legal counsel for BSL and their parent company, Edward Kraemer and Sons,¹ to discuss BSL's procedures for calculating and reporting the landfill abatement fee required by Minn.Stat. § 473.843, subd. 1(1998).Appellant attended this meeting in his capacity as BSL's general manager.

During the December meeting BSL representatives made reference to using a waste conversion factor of weight to volume of 1.8 but later denied using anything other than the statutorily required 3.3 conversion factor.SeeMinn.Stat. § 115A.918(1998);Minn.Stat. § 473.843, subd. 1(1998).County staff subsequently requested and photocopied numerous BSL records and became convinced that BSL was underreporting the amount of waste received and hence underpaying the surcharge due to the state, county and city.

Following interviews with haulers and a review of BSL records, the case was officially forwarded to the Dakota County Attorney's Office for criminal investigation on January 20, 1995.Attorney Skelly remained in charge of the criminal investigation and Sergeant Jeffrey Nylen of the Dakota County Sheriff's Office was assigned to supervise and coordinate it.In early May, Nylen applied for a warrant and it was issued to search BSL for documents and other information related to the payment of the surcharge.An organizational meeting was held on May 9, 1995 attended by approximately 60 representatives of the law enforcement agencies that were to be involved in executing the search warrant, including the IRS, the Minnesota Department of Revenue, the Minnesota Attorney General's Office and Bureau of Criminal Apprehension (BCA), police departments from Hastings, Mendota Heights, Inver Grove Heights, Lakeville, Apple Valley and Eagan as well as the Dakota County Sheriff's Department, Dakota County Attorney's Office and DCEM.Both Attorneys Skelly and Stassen attended the meeting.Detective Bill Forbord of the Lakeville Police Department was in charge of the execution of the warrant and each person who was to be involved was given an assignment.BCA Agent David E. Knefelkamp was assigned to "interview team one" with specific instructions to interview appellant from a list of questions provided by Dakota County law enforcement.

The execution of the search warrant began at approximately 8:45 a.m. on May 11, 1995 and involved a team of twelve law enforcement officers — ten at the BSL office and two at the scale house.Appellant was not yet in the BSL office when the search began but was notified of the search by BSL staff and spoke to one of the investigators on the telephone.BSL staff also contacted attorney Dixon.Appellant arrived at the office at approximately 9:30 a.m. and was presented with a copy of the search warrant but was also informed that he was not under arrest.Forbord described appellant as "very cooperative."When Knefelkamp introduced himself to appellant and asked if he could speak with him, appellant agreed, but first asked and was given permission by Forbord to fax the warrant to Dixon.Knefelkamp testified at the omnibus hearing that appellant also asked to speak with "his attorney" prior to faxing the warrant to Dixon, and appellant called Dixon's office to let them know a fax was coming.

The interview between Knefelkamp and appellant was tape-recorded and lasted from 9:37 a.m. until 10:17 a.m. Knefelkamp informed appellant again that he was not under arrest and that the officers were "simply gathering information."At no time during the interview did appellant again request to speak with an attorney.

While appellant was being interviewed, Dixon contacted Forbord by telephone² and advised him that he represented BSL and its employees and asked that no statements be taken from employees without him being present.Dixon asked to speak with appellant and was informed that he was being interviewed.Forbord refused to terminate appellant's interview or to notify appellant that Dixon wanted to speak with him.Forbord also informed Dixon that he would not be permitted in the office area because it was considered a crime scene while the warrant was being executed.Dixon expressed his doubts that Forbord could keep him off the premises and was referred to the Dakota County Attorney's Office.Forbord testified at the omnibus hearing that he contacted the Dakota County Attorney's Office after his conversation with Dixon to ask "whether or not Dixon could come in the building and also if I needed to interrupt"appellant's interview, and that he was told by Skelly, in response, that he did not need to terminate the interview or allow Dixon on the premises.Dixon also called Skelly and was told that he would not be allowed inside the building and would not be allowed to speak with employees unless they requested his presence.

Dixon met Forbord in the parking lot when Dixon arrived at the office at approximately 11 a.m. and again told Forbord that he represented the company and its employees.Forbord responded that Dixon would not be permitted to enter the office building or speak with any of the employees.Forbord did tell Dixon however, that any employee who requested the presence of counsel would not be interviewed.

Twenty-four charges of tax fraud were brought against appellant individually in June of 1997 alleging that he fraudulently prepared and filed Landfill Abatement Fee Reports with the Minnesota Commissioner of Revenue in violation of Minn.Stat. §§ 289A.63, subd. 2(b); 609.03; 609.05; and 609.101 (1998).The complaint alleged that the fraud resulted in an underpayment of $1.4 million in landfill abatement fees.

Following an omnibus hearing on January 12 and 15, 1998, the trial court issued an order suppressing the portion of appellant's statement taken after Dixon called BSL and Forbord refused to stop appellant's interview.Without reference to MRPC 4.2the trial court determined that the knowledge of the County Attorney's office and the IRS agents that appellant was represented by counsel was imputed to the remaining investigators executing the search warrant under the "collective knowledge theory" articulated in State v. Riley,568 N.W.2d 518, 523(Minn.1997).The trial court held that "the government may not go behind the backs of corporate...